With all of the changes currently occurring in society, it’s important that we visit the only motion in criminal practice that is enshrined in our United States Constitution. That motion is generally referred to as “the great writ of habeas corpus.”
In criminal practice, there are a number of applications that are made during criminal proceedings (both pretrial and post-conviction).
However, the framers of the constitution had one application in mind that they believed was the cornerstone of due process for a defendant or suspect taken into custody and facing criminal allegations.
The provisions for the “Great Writ of Habeas Corpus” can be found in:
- United States Code Annotated Section 2255;
- United States Code Annotated Section 2254; and, comparatively,
- New York State statute, Article 70 of New York’s Civil Practice Law and Rules.
What is the Writ of Habeas Corpus?
The “writ of habeas corpus” is a Latin term that basically means “produce the body.”
The framers to the constitution deemed this application to be of utmost importance because it outlined the requirements for United States citizens from being taken into custody and how, without formal charges being filed, defendants may not be held for prolonged periods of time.
If the defendants were held without charges, the agency that had custody over that defendant would have been deemed to have been in violation of the United States Constitution.
What is Section 2255?
Section 2255 (which was the original habeas corpus statute enacted) related to the constitutional habeas corpus provision that provided for the review of the circumstances of custody of an individual held by federal or national authorities.
The crux of the federal habeas corpus was to allow individuals held by the federal government – especially in a time of crisis – to have their custody reviewed by a federal judge.
Can I File a Writ of Habeas Corpus During Coronavirus COVID-19?
It is worth noting – before going any further – that the federal writ of habeas corpus has only been suspended in the United States no more than nine (9) times in the history of this nation and never nationwide.
When we look at the events of the COVID-19 era, for the first time in the history of this country, all states of this nation are under a federal, state, and local emergency public health declaration.
Criminal courts – for the most part – have been shuddered and several courts were almost altogether suspended in many locations.
Many people are nervous and are wondering what protections they have in the event of them being detained and if they would be held indefinitely and/or in violation of their constitutional rights.
The answer to that would be the state and federal habeas corpus proceeding.
How Does Filing a Writ of Habeas Corpus Work?
How the process works is that an individual held in custody would have an attorney and that attorney would file what’s called an original application with the District Court governing the jurisdiction for which the individual was held and request that court review the constitutionality of the individual’s detention.
In response to that application, an attorney for the government would either proceed to oppose the application – and give a full accounting for the reasons of the persons detention – or concede that the individual was held against or in violation of his or her constitutional rights.
After receiving papers from both parties, the Court would determine whether or not there was any indication (or it seemed more likely than not) that the individual could possibly be in custody in violation of his or her constitutional rights.
The judge will then order the warden of the facility where the individual is being held to “produce the body” of the individual before the court for a full hearing on the allegations that had been made in the attorney’s submissions.
What Happens at a Habeas Corpus Hearing?
During a hearing order related to a habeas corpus proceeding, the defendant and his attorney would have an opportunity to present witnesses and documents in support of claims that the defendant was being held in by in violation of his or her constitutional rights.
The witnesses would be subjected to cross–examination and documentary evidence may be submitted in an effort to support the witness testimony or fully hear matters related to topics that had been testified to.
Who Decides Whether a Defendant is Being Held in Violation of Their Rights?
The judge hearing the claim would ultimately rule on the constitutionality of the individual’s detention. The judge could decide:
- that the detention was legal/illegal;
- whether a trial should be held; or
- order the immediate release of the individual.
Almost a decade after the enactment of § 2255, Congress passed § 2254.
- § 2254 expanded the habeas corpus protections for individuals held in state custody (potentially in violation of their federal constitutional rights and protections.)
What is the Difference Between § 2254 and § 2255?
Unlike § 2255 (which allowed an individual to directly and immediately proceed to habeas corpus proceedings before a federal judge or magistrate) § 2254 stated that a state prisoner would only be eligible to have a Federal District Court judge begin the review process of the constitutionality of their state detention after having exhausted all state remedies to review his or her detention and/or conviction.
The enactment of § 2254 was a reasonable constitutional interpretation – being that the rights afforded to all citizens by the US Constitution is applied to the states through the 14th amendment of the United States constitution.
How Does a Writ of Habeas Corpus Effect a Criminal Defense Attorney’s Practice?
The federal writ of habeas corpus, or “great writ,” was a very strong tool in a criminal defense attorney’s tool chest until Congress decided that it was time to minimize the absolute right that criminal defendants had to federal court review which resulted in the watering down of the “great writ” that we have today.
In the early 1990’s, New York City saw its first attempt on a domestic terrorist attack on the twin towers. A few years later, in Oklahoma City, there was another terrorist attack on a federal building that also housed a daycare and killed many United States citizens; including children and federal workers.
In response to the attack in Oklahoma City, the then president of the United States Congress – under the influence of politician and senator Newt Gingrich – ultimately enacted what is known as the Anti-Terrorism and Effective Death Penalty Act of 1996.
What is the Anti-Terrorism and Effective Death Penalty Act of 1996?
Under the Anti-Terrorism and Effective Death Penalty Act of 1996, the “great writ” that was previously available to a defender to be filed at any time was now highly restricted.
Under § 2254 and § 2255, defendants were given a one-year hard deadline after conviction and finalization of the direct appeal process in which to file the federal writ of habeas corpus.
Even more damaging to the great writ was a provision that grew from the Act that defined any writ of habeas corpus petitions filed by a defendant more than one–year after the completion of the direct appeal process as a “second and successive writ.”
What is a “Second and Successive Writ?”
A “Second and Successive Writ” refers to whether or not a criminal defendant files a writ of habeas corpus or not after they have attempted their first-round appeal.
If at a later date, the defendant decides to file a federal writ of habeas corpus, they will have to prove that the court should consider the writ because it satisfies one of the very limited carve–outs for consideration of a second and successive writ.
The enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 came not only on the heels of the Oklahoma City Bombing but also came at a time when the courts in the United States (both state and federal) were just starting to come to terms with the fact that hundreds – if not thousands – of men and women in U.S. prisons we’re actually innocent.
What is Being Done About Innocent Inmates?
The enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 was a very damaging blow to the actual innocence movement because many of the men and women who are incarcerated have only gotten relief from their wrongful convictions in a habeas corpus proceeding over a decade after the individual had been originally convicted.
Despite the impact of the federal habeas corpus on the actual innocent, the fact of the matter is that it was Congress’ intent to impose a swift death sentence upon the perpetrators of the Oklahoma City Bombing and other individuals who have been sentenced to death in the United States.
Despite the effort of Congress to minimize the appeal and review process for criminal defendants facing the death penalty and defendants who have been handed down a sentence of death there are many hard-fought battles to have the courts review criminal convictions.
One notable decision that stemmed from a habeas corpus application was Morales v. Portuondo.
Morales v. Portuondo
United States District Court for the Southern District of New York
154 F. Supp. 2d 706 (S.D.N.Y. 2001)
Charges: New York State inmate being convicted of murder and having been sentence to a maximum term of life in prison.
Facts of the Case: Morales v. Portuondo. turned out to be a case where – despite being factually innocent – Mr. Morales served almost two decades in prison and had been denied all of his direct appeals (as well as collateral attacks) in the state court.
Reviewing the Case: Through the efforts of counsel for Mr. Morales, the federal District Court did in fact review Mr. Morales is conviction. One of the things that the Federal District Court decided, in that case, was a key issue that occurs in a lot of criminal cases. The issue is that if a prosecution witness takes the stand and testifies that a defendant committed a certain act, and then, later, that same witness (who may or may not have had hidden motivations for offering the testimony) ultimately recants that statement, we can’t trust their testimony. So, how could it be the case that the witness is still found credible enough to maintain a conviction? Especially if that is the only material witness in a criminal case.
Holding of the Case: The judge in Morales reasoning was based on the fact that the witness has now become neutralized because of two inconsistent statements (both given under the penalty of perjury). In addition, the judge believed that it was wholly unfair and unreasonable to maintain a conviction based upon a witness who was discredited by their lying under oath. As the court pointed out (among other things), there is no way for us as human beings to know for sure.
Outcome of the Case: Mr. Morales’s conviction was ultimately reversed and a new trial was ordered. However, the prosecution (without the witness) admitted that they could not proceed and obtain a conviction against Mr. Morales.
Just as defendants in criminal defense attorneys had litigated many issues regarding the tolling of the one–year term, the application of successive writs and other issues related to the anti-terrorism and Effective Death Penalty Act has been heavily litigated.
The Military Commission Act of 2006
In 2006, the great writ received its most significant blow to date when Congress enacted the Military Commission Act of 2006.
What is the Military Commission Act of 2006?
Just as the anti-terrorism bill and effective death penalty act was enacted in response to the Oklahoma City bombing, the Military Commission Act of 2006 was enacted in response to the wars in Afghanistan and Iraq that stemmed from the bombings in the United States on 9/11.
What About Prisoners in Guantanamo Bay?
As many people know, during the wars in Afghanistan and Iraq many individuals (both former nationals and U.S. citizens were taken into custody and held in Guantanamo Bay without the ability to speak to counsel and without a formal criminal trial.
The United States Supreme Court – in at least two or three instances – found that even though the prison in Guantanamo Bay belonged to a foreign nation, the United States had a long-term lease or agreement for that facility for operations. In light of that fact, the United States Constitution did apply.
If the Court Held that The Constitution Applied, Why Were Individuals Still Held Without Counsel or a Formal Criminal Trial?
In order to circumvent the decisions made by the United States Supreme Court that held that foreign nationals and U.S. citizens captured in other countries did have a right to counsel and that their detention could be reviewed by an attorney filing a writ of habeas corpus on their behalf, Congress decided that they would modify the statutory construction of the great writ whereby any individual labeled an “enemy combatant” could be held indefinitely without a trial or contact with legal counsel.
The justification behind this decision was that this distinction was a necessary national security measure.
How Does This Effect the U.S. Citizen?
Not only did U.S. citizens lose their right to have a United States court review their detention for the legality, the ability of a federal court judge to refer a state Court’s decision based upon the interpretation of a federal constitutional amendment was minimized.
What was the “New Standard?”
The “new standard” was that a federal judge would have to then review the state Court’s decision for reasonableness.
What this means is that, even if a federal court judge believed that the state court judge was wrong and that the decision made by the state court judge was inconsistent with decisions made within that judges circuit, federal court judges no longer had the authority to reverse the state court judge’s decision (unless it was clearly unreasonable and inconsistent with established United States Supreme court precedent.)
How Does this Apply to Criminal Defense Attorneys Today?
When looking at the nation–wide shutdown and the restrictions placed upon individual liberties (including the push to remove many previously publicly held quiet proceedings to video conferences) many of the previous acts that diminished the habeas corpus once again make the writ of habeas corpus a much more prominent and he needed tool for the criminal defense bar.
How Can the Criminal Defense Bar Use This as a Tool?
Generally, when assessing the viability of a federal habeas corpus application, a defense attorney takes into account many factors. If a federal habeas corpus application is denied at the Trial Court or District Court level, there may be an opportunity to have that application reviewed by a Circuit Court by filing a “certificate of appealability.”
What Happens After the Filing of the Application?
After the initial filing of the application, many District Court judges request the defendant’s consent to have the application initially reviewed by a United States Magistrate.
For tactical reasons (and depending on the magistrate) it is usually a good idea to consent to initial magistrate review of the habeas corpus petition. It gives the defendant, it in most cases, an additional opportunity to persuade a judge of the success and merits of his or her argument.
What Happens After the Case is Submitted to the Magistrate?
Once the case is fully submitted to the magistrate and all documents are reviewed the magistrate will not make a final decision.
Instead, the magistrate will prepare a report and recommendation to the District Court judge regarding whether the magistrate believes that the petition should be granted or denied.
At this point, defense counsel has an opportunity to file what’s called “objections” to the magistrate’s report and recommendation.
Only then will a District Court Judge or Article 3 Judge make a decision regarding whether the application should be granted or whether there should be a hearing ordered.
When Do You File a “Certificate of Appealability?”
If a report and recommendation is accepted by the District Court judge and the application is denied, defense counsel can then file what’s called a “certificate of appealability.”
What is a “Certificate of Appealability?”
A Certificate of Appealability is a document asking the Circuit Court of Appeals to review the Article 3 Judges decision and denial.
Can You File a Writ of Habeas Corpus in New York State?
The New York State Constitution has adopted the federal writ habeas corpus.
This allows a defendant to challenge the legality of their detention.
In most cases, when you see a habeas corpus petition filed in New York State, it usually challenges the:
- denial of bail;
- terms of bail;
- denial of a parole application; or
- the affirmation of a parole violation.
Can You Challenge a Defendant’s Pre-Conviction Detention?
In the rare case, you may find (until recently) a state habeas corpus petition filed challenging the constitutionality of a defendant’s detention pre–conviction.
However in light of the unprecedented steps taken by federal, state, and local governments in relations to criminal defendants and the current detention of defendants – almost indefinitely – the New York state habeas corpus has been more commonly used to challenge some of the conditions that stemmed from the emergency declarations which caused great restrictions upon citizens in general (and criminal defendants specifically.)
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